Understanding Your Rights and Responsibilities as an HIV-Positive Person in the Workplace

Rights in the Workplace: Know the Law

Several laws cover your rights as an HIV+ person at work:

• Americans with Disabilities Act (ADA) of 1990:
  • If you can do the whole job, you are a qualified individual with a disability
  • If HIV or a side effect limits you somehow, you have a functional limitation and can request a reasonable accommodation
  • If you need a change in your job because of the limitation, tell your employer that you have a disability -- you do not have to disclose your HIV status. Talk about what you can and cannot do. Use functional limitation language and back it up with a note from your health care provider that suggests a solution but does not state the diagnosis.
  • You pose no threat to other workers' health on the job; being fired because you are living with HIV is illegal in the US
  • The ADA is a tool that deserves wise, careful use; learn more about it from the Job Accommodation Network
• Consolidation Omnibus Budget Reconciliation Act (COBRA) of 1986:
  • COBRA provides certain workers (and their spouses and dependent children) a right to 18 months of health insurance coverage at group rates following certain events that cause people to lose their health insurance coverage.
  • Events that qualify you for COBRA as an employee include: quitting your job, being fired from your job (as long as it was not because of misconduct), or getting a reduction in your hours such that you are no longer eligible for benefits (e.g., group health insurance). As a spouse or dependent child of an employee, you also qualify for COBRA in the event of divorce or legal separation from the covered employee, death of the covered employee, or the covered employee becoming eligible for Medicare.
  • To qualify for COBRA, you must have been enrolled in the employer's group insurance plan while the covered employee worked for the employer.
  • To sign up for COBRA coverage, you need to tell the group health insurance plan administrator within 60 days of the qualifying event (e.g., loss of job). The employer is also supposed to tell the group health insurance plan administrator of the event, and you should receive a letter telling you that you can choose to sign up for COBRA coverage within a couple of weeks. You then have 60 days to decide whether or not you want COBRA coverage. You have 45 days from the date you sign up for COBRA coverage to pay the first premium.
  • It is important to realize that, when you are an active employee and covered by your employer's group plan, your employer usually pays part of the premium for health insurance. However, COBRA coverage is generally more expensive than coverage for active employees because COBRA participants have to pay the full premium themselves.
• Health Insurance Portability and Affordability Act (HIPAA) of 1996:
  • HIPAA enables workers to continue and transfer their health insurance if they change or lose their jobs; this prevents insurance gaps when you go from one insured situation to another
  • HIPAA protects against the sharing of confidential health information (and carries stiff fines for disclosing someone's medical information at work or in a medical setting)
• Family and Medical Leave Act (FMLA) of 1993:
  • FMLA provides for up to 12 weeks of unpaid leave in one 12-month period to deal with a family issue or medical problem, either for you or an immediate family member. This law only applies to private-sector employers with over 50 employees.
  • You can take FMLA leave a few hours at a time, if necessary
  • FMLA leave is separate from short-term disability and is not the same thing as sick days or personal time off (PTO)
  • FMLA leave has its own application form
  • The FMLA form asks you to identify the reason for the leave. The reason is one of six broad categories listed on the form. If you want to protect your confidentiality, you do not have to supply a diagnosis on the form. If you need help filling out the form, ask a social worker or nurse at your health care provider's office.

Taking Care of Yourself at Work

• Keep track of all of your performance reviews. They are a testament to your ability to perform the work required. You may need them if someone learns your HIV status and suddenly begins giving you poor reviews (note: this is discrimination, and it is illegal!).
• It is important that you think carefully before disclosing your HIV status at work. Try to have realistic expectations about the possible outcome.
• Set a respectful tone at work in regards to health privacy and refuse to discuss other employees' medical conditions
• Focus on doing a great job